While military divorces are no more complicated than civilian divorces, there are special rules and requirements that apply to U.S. service members and their spouses when they divorce. These differences may affect matters of compliance, service of process, residency or filing requirements, and division of military pensions.
Below is an overview of military divorce laws affecting U.S. service men and women who are contemplating or getting a divorce.
Military Divorce Laws
Military divorce is governed by both state and federal laws. For example, federal laws may affect where divorcing couples end up in court or how military pensions are divided, whereas state laws may affect how alimony and spousal support may be issued.
Active-duty service members are generally protected from divorce proceedings in most cases. Under the Servicemembers Civil Relief Act (SCRA), U.S. service men and women cannot be sued or begin divorce proceedings while on active duty or for 60 days following active duty (at the discretion of the court). This is so military service members may devote their time and energy to defending the Nation.
Before a court can grant a divorce to military members or spouses, it must have "jurisdiction" or the authority to hear the case. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.
Service of Process
Many states will allow a military member or their spouse to file for divorce in the state the military member is stationed. It would not matter if neither spouse is a legal resident of the state. Generally speaking, military members and their spouses have three choices when it comes to which state to file for divorce:
- State where the spouse filing resides.
- State where the military member is stationed.
- State where the military member claims legal residency.
Whichever state they file in the grounds for divorce, property distribution, child custody and child support issues are governed by the laws of the state where the divorce petition is filed. Military members would be wise to consult their legal aid office on base for further information or contact a qualified divorce lawyer in the state they wish to file for divorce.
It is worth noting that military members have legal timing protection from divorce proceedings that are not established for civilians. Under the Service Members Civil Relief Act military members are protected from lawsuits including divorce proceedings so they can “devote their entire energy to the defense needs of the Nation.” A court can delay legal proceedings for the time that the service member is on active duty and for up to 60 day following active duty.
Residency and Filing Requirements
States will often reduce or eliminate the residency requirement in military divorces. Several states, for example, will allow military members or spouses to file for divorce in the state where the military member is stationed, despite whether the military member or spouse actual residents.
Other states allow military members or spouses to file for divorce in the state where either spouse resides or the state where the service member has legal residency.
Military Pensions and Benefits
Like civilian retirement benefits, military pensions are subject to division between spouses in the event of divorce. Under the Uniformed Services Former Spouses' Protection Act (USFSPA), state courts may treat military retirement pay as either sole or community property depending on the state. While the USFSPA does not provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws.
Further, payment of the former spouse's share of military retirement is paid directly by the Defense Finance and Accounting Service (DFAS) to the former spouse if there was at least 10 years of marriage that overlapped with 10 years of military service (known as the ten-year rule).
Regardless of the length of marriage, however, a court may still authorize direct payment to a military spouse who has been married for less than 10 years as an offset, except payment would come from the retiring spouse rather than from the DFAS.
In addition to pension benefits, spouses of former military personnel are also eligible for full medical, commissary and exchange privileges when:
- The couple was married for 20 years or more
- The service member has performed at least 20 years of creditable service toward retirement pay
- There was at least a 20 year overlap of marriage and military service
Spousal and Child Support
The military has special rules concerning spousal maintenance (alimony) and child support. These rules are designed to ensure a service member's family support obligations beyond a divorce or separation.
A court may enforce spousal and child support obligations in a number of ways including by:
- Voluntary or Involuntary Allotment
A court may also require the providing spouse to maintain life insurance that would cover chld or alimony support payments for a specific period.
Getting Legal Help
Because military divorce requires special knowledge of laws that do not apply to civilian divorce, it may be wise to speak with an experienced divorce lawyer who handles such cases.